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Breaking Up the NSA

The NSA has become too big and too powerful. What was supposed to be a single agency with a dual mission -- protecting the security of U.S. communications and eavesdropping on the communications of our enemies -- has become unbalanced in the post-Cold War, all-terrorism-all-the-time era.

Putting the U.S. Cyber Command, the military's cyberwar wing, in the same location and under the same commander, expanded the NSA's power. The result is an agency that prioritizes intelligence gathering over security, and that's increasingly putting us all at risk. It's time we thought about breaking up the National Security Agency.

Broadly speaking, three types of NSA surveillance programs were exposed by the documents released by Edward Snowden. And while the media tends to lump them together, understanding their differences is critical to understanding how to divide up the NSA's missions.

The first is targeted surveillance.

This is best illustrated by the work of the NSA's Tailored Access Operations (TAO) group, including its catalog of hardware and software "implants" designed to be surreptitiously installed onto the enemy's computers. This sort of thing represents the best of the NSA and is exactly what we want it to do. That the United States has these capabilities, as scary as they might be, is cause for gratification.

The third is the deliberate sabotaging of security. The primary example we have of this is the NSA's BULLRUN program, which tries to "insert vulnerabilities into commercial encryption systems, IT systems, networks and endpoint communication devices." This is the worst of the NSA's excesses, because it destroys our trust in the Internet, weakens the security all of us rely on and makes us more vulnerable to attackers worldwide.

That's the three: good, bad, very bad. Reorganizing the U.S. intelligence apparatus so it concentrates on our enemies requires breaking up the NSA along those functions.

First, TAO and its targeted surveillance mission should be moved under the control of U.S. Cyber Command, and Cyber Command should be completely separated from the NSA. Actively attacking enemy networks is an offensive military operation, and should be part of an offensive military unit.

The FBI is charged with counterterrorism in the United States, and it needs to play that role. Any operations focused against U.S. citizens need to be subject to U.S. law, and the FBI is the best place to apply that law. That the NSA can, in the view of many, do an end-run around congressional oversight, legal due process and domestic laws is an affront to our Constitution and a danger to our society. The NSA's mission should be focused outside the United States -- for real, not just for show.

And third, the remainder of the NSA needs to be rebalanced so COMSEC (communications security) has priority over SIGINT (signals intelligence). Instead of working to deliberately weaken security for everyone, the NSA should work to improve security for everyone.

Computer and network security is hard, and we need the NSA's expertise to secure our social networks, business systems, computers, phones and critical infrastructure. Just recall the recent incidents of hacked accounts -- from Target to Kickstarter. What once seemed occasional now seems routine. Any NSA work to secure our networks and infrastructure can be done openly—no secrecy required.

This is a radical solution, but the NSA's many harms require radical thinking. It's not far off from what the President's Review Group on Intelligence and Communications Technologies, charged with evaluating the NSA's current programs, recommended. Its 24th recommendation was to put the NSA and U.S. Cyber Command under different generals, and the 29th recommendation was to put encryption ahead of exploitation.

I have no illusions that anything like this will happen anytime soon, but it might be the only way to tame the enormous beast that the NSA has become.

Comments

There were some comments on Slashdot stating that the FBI is not meant to intelligence but more for investigations. I posted a comment about assigning that part to the CIA instead and they also said that was wrong as well. Is there any other organization suited to performing intelligence gathering/processing the way that the NSA is setup?

Bruce, you've stated in a previous blog post that the FBI might be doing more domestic spying than the NSA. In this blog post, you state that domestic surveillance by the FBI is preferable than that of the NSA. Why? Given the consequences of false positives and the not-so-stellar track record of the FBI's counterterrorism investigations, why endorse the FBI's domestic surveillance?

Any operations focused against U.S. citizens need to be subject to U.S. law

seems to have a clear subtext that operations not focussed against U.S. citizens don't need to be subject to U.S. law. Shouldn't any action performed by the U.S. government be subject to U.S. law?

...hacking a Belgian telephone company. If we're going to attack the infrastructure of a foreign nation, let it be a clear military operation.

If you're going to attack NATO allies, you might want a clear separation between the offensive organisation and the military, who have people publicly based in the territories of those allies and working with them on a daily basis.

That's right, all the grunts who couldn't get real jobs and had to join the military, and who couldn't hack real schools and had to buy St. Regis Philbin Phds, that's who's controlling your mind. So that's why I can't figure tips in my head anymore! I am subjected to mind control by dopes.

I think the point would ideally be: the military already has people who would say "Hold on, those are NATO allies!". Where a bunch of virtual spooks hidden in a building have just been saying "Networks! Get'em!" Assuming that these government agencies are still inclined to be reasonable at all.

Changing the organizational charts & shuffling personnel name tags on existing U.S. intelligence bureaucracies will not work.

Creation of the "central" CIA in 1947 was supposed to solve all these multi-agency intelligence and constitutional problems -- it failed miserably.

Today's mess REQUIRES total abolition of the NSA and CIA. Defense against genuine foreign enemies (and any intelligence to do so) should be the exclusive domain of the Department of Defense, under strict civilian leadership. Domestic law enforcement must be totally isolated from the entire national defense system.

singeling out the Taylored Acess Operations into the Cyber command is questionable, I think. There are many cyber operations, e.g. stuxnet, that may have to be done and involve a country the us is not at war against. Cybercommand could not help there.

What is simply needed is a discussion about the target list of tao. For example, are the allies of america, who go on war together with america, like germany reasonable spying targets?
Are industrial companies like SAP reasonable spying targets?
Is it reasonable, to attack a company, when that can give information on terrorists? Is it reasonable to plant bugs in google servers, if that could give information on terrorists?

These questions cant be solved by just changing the "ownership" of TAO from NSA to US Cybercommand.

There were some comments on Slashdot stating that the FBI is not meant to intelligence but more for investigations. I posted a comment about assigning that part to the CIA instead and they also said that was wrong as well. Is there any other organization suited to performing intelligence gathering/processing the way that the NSA is setup?

I haven't given this a lot of thought, but my initial reaction is that the NSA should be refocused on the american people (with all the restructuring that entails) for intelligence gathering and the foreign intelligence gathering should either be assigned to the CIA or a new entity should be spun up.

A fair observation, I'd argue that it really began with the unconstitutional legislation that is the National Security Act...add to that a number of EO's, PPD's, secret courts and you have effectively created an authoritarian instrument. There is no painting over this fact, people seem to have a problem with names and labels. The functional equivalency of a fascist instrument can have many names--it is what happens or is justified by whatever label or name used.

We have to get beyond this--the need for foundational reform (dare I say revolution) is apparent. People need to WTFU (wake the F' up).

I would say that the SIGINT branch of the NSA should be moved to the CIA, and their mission should be 100% foreign, not domestic. Domestic intelligence should be its own agency (Domestic Intelligence Agency - DIA?), separate from both the CIA and FBI, but bound by the same laws as the FBI. When the CIA's foreign operations cross over to domestic soil, this new DIA should take over. The CIA and DIA should work in close proximity to one another. They need to be subject to proper oversight, of course, which we don't seem to have today.

The FBI should be focused entirely on criminal investigations, not intelligence operations. I think there should be a clear separation of roles by agency. I also think we should avoid overlapping roles between agencies as well, so no two agencies should be doing the same jobs; I would probably even go as far as getting rid of the DEA and the law enforcement branch of the ATF, and roll them up into the FBI.

The NSA itself I think should be focussed entirely on securing the US infrastructure: cryptography, analyzing hardware and software used by the US government (bonus points when that is also used by the private sector), creating security standards and requirements that software and hardware used by the government must be certified against, analyzing protocols, etc.

@ Mel: There are no "NATO allies of the US" - there are vassal states, who provides soldiers for the wars of the feudal lord, but, people are getting tired of this to the point where voters and taxpayers are beginning to doubt democracy itself. Since it apparently is impossible to elect a government that will tell the US and the NSA where to stick it!

What would obamas reaction be if the Germans had bugged the whitehouse, I wonder. More than Nothing, that is certain.

We can't have faith In our Intelligence Agency's when our elected officials fail to respect the wishes of its people. Look around this Is no longer America it's a fading shadow of what once was a Country of the People and by the People. The NSA cemented that fact and Congress along with the President made hand prints in it.

as much as restructuring the NSA may seem like a good idea at first blush, i think it needs to be considered the the context of the entirety of the US national intelligence community.

according to dni.gov there are now 17 (used to be 16, and their member list still only shows 16) intelligence agencies. i haven't been able to find out what the new member of the intelligence community is.

regardless, the NSA is just a small part of that and shifting authority/responsibility to other agencies doesn't seem like it will actually make oversight of this intelligence hydra significantly easier.

I like your proposal, but I don't think it goes far enough. SIGINT and COMSEC should be entirely separated. As long as they are in the same agency, there will be conflict between the two. Perhaps COMSEC should be moved to NIST, or spun out into a new agency.

They just need to give me the COMSEC organization. I'd split it into several functions: boosting legacy system security; creating radical, usable new designs (eg CRASH SAFE); sponsoring application of security engineering to creating specific products partnered with academia, nonprofits, and COTS teams.

It would be managed day-to-day by people more suited to that while I ensured all deliverables were being produced with subversion resistant processes. I might also locate it outside the US in a neutral country whose laws and military might support my effort to have access to what we produce.

Id leave integration of classified items (Type 1) to NSA and other military/intelligence organizations using toolchains we build. We'd supply good alternatives, though, with obfuscation potential. We'd also offer secure timestamping,PKI, escrow, SCM, backup storage, and other services if only to justify building high assurance versions of them. There are already solid designs or offerings for most of these to use as a starting point.

Even with $10 mil a year, we could crank out several highly assured offerings per year (averaged out). Give me $100 mil a year and patent immunity, I'll do way better than that with a whole selection of secure, easy-to-use systems for most use cases that COTS and FOSS types can build on VAR-style. Reason for that strategy is to keep from putting private sector out of work if any mandates occur. Instead, they'd just work with stronger foundations.

Re SIGINT

Their machines are too powerful and integrated with many trusted insiders. I'm not sure a split with any meaningful effect is possible if those machines are still running.

I don't think targeted surveillance should be regarded in all cases as an offensive military operation, or that it should be placed under Cyber Command. Throughout history, world powers have gathered intelligence on each other, in peacetime and in war, on enemies and allies. It's unrealistic to expect that the United States restrain itself from conducting surveillance on the governments of its major allies, just as it is unrealistic to expect those allies refrain from conducting surveillance on our own government. The problem is not that the U.S. is the only power spying on its allies, but that U.S. intelligence technology and spending have outstripped legal restraints and democratic oversight, resulting in way too much indiscriminate surveillance.

As I understand it, the function of Cyber Command is to protect U.S. government networks from foreign attack, and to build capabilities to attack foreign infrastructure through computer networks. These are military missions in a stronger sense than mere surveillance—sabotaging Iranian centrifuges can easily be seen as an act of war in a way that reading Angela Merkel's emails cannot.

Furthermore, legitimate surveillance of foreign powers and their agents doesn't always involve breaking into foreign networks; sometimes it means monitoring agents' activities on U.S. networks. Whatever we call the agency that conducts such surveillance, we shouldn't think of it as an offensive military operation any more than we do any other foreign intelligence activity, and we can't be naive enough to pretend it will only take place against our enemies or when we are at war.

I agree with No Sugar Added that COMSEC and SIGINT should be conducted by separate agencies. As long as the agency in charge of surreptitiously surveilling networks is also in charge of protecting U.S. networks, it will work to protect its own internal networks and do little to protect anyone else's.

No doubt splitting up the NSA's missions into different agencies and reducing the conflicting incentives faced by its leaders can help address the critical problem of unconstitutional and indiscriminant surveillance. But the bottom line remains that U.S. surveillance laws must be rewritten to impose much stronger and more specific restraints on the number and kind of targets who can be surveilled.

The law does not need to be rewritten. It is perfectly clear. The laws need to be read out to the US government criminals that flout them. Supreme law of the land on US surveillance is ICCPR Article 17. Domestic legislation at all levels of government must be brought into compliance with the ICCPR.

According to General Comment 16 of the Human Rights Committee, which has interpretive authority over US law under Article 38 of the ICJ Charter, Article 17 is to be interpreted as follows:

"Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited."

We have the laws we need. What we need is government officials who don't wipe their ass with them.

Under the doctrine of Responsibility to Protect (R2P), a state's sovereignty is conditional on compliance with, among other laws, the ICCPR. A state like the US government which is unable or unwilling to comply requires capacity-building or intervention by the international community. The US interpretation of R2P is why Gadafy got a bayonet up his butt. Under this universally-acknowledged principle of statecraft, it's time for Clapper and Obama to bend over and say hello to Mister Bayonet.

Restore my agency to its former power by giving it the ability to collect information on domestic targets beyond - far beyond - the methods that made me Director For Life?

I love the idea of putting the tailored ops people into the military - I do love a man in uniform - but are your readers actually so stupid that they don't understand how completely intertwined the tailored ops group is with the groups subverting hardware and software standards?

(Does anyone think that

goto
fail
fail

wasn't known in and used by tailored ops, yet reeks of a suborned low-level hire with his thumb on the QA testing of the code and his wallet filled from the subversion budget?)

Thanks again though for the big wet kiss to my successors at Fabulous, But Incompetent. Always love to hear you whistling as you walk by my crib!

I'm sorry but history tells us that trying to break up the NSA or similar organisations is going to be about as effective as rearanging the deck chairs on the Titanic.

Firstly spliting the organisation up makes oversight much much harder, secondly it means more legislation with holes in it, thirdly it gives rise to more oportunity to build empires and fight turf wars as a way to keep oversight from being effective and get better group think buy in of people within the respective empires.

For those who were adults with an interest in the intel community activites towards the end of the Cold War, there was the question of "what next". The general feeling was "swords to plough shears" and "laying off personel" with the attendent "tax savings". However those who had studied history warned "The devil makes work for idle hands" and "Empires topple not grow smaller" with the other observation that "tax savings never happen".

Whilst I'm not saying this particular situation could have been predicted some sugested parts of it such as "the spying would turn inward on the civilian population", and that "the agencies would continue to grow by finding new threats to watch".

I personaly think the first step should not be "push a stick in the wasps nest and shake" which is what trying to break the NSA up currently will be. The first step is sorting out oversight, and I don't mean more of the "same old same old" which achieves at best little, at worst activly aids the likes of the NSA.

Oversight is clearly broken and is at best compleatly ineffective and self serving, whilst others have pointed out it is actually corrupt and aligned with making the situation worse.

The first sugestion on that score is how to stop congress critters getting "captured" by first being enamored, then enthralled before becoming willing supplicants genuflecting infront of the graven iconography of the intel world.

One way is automatic rotation similar to "jury service". A second is to deny the oversight members legislative creation ability on intel whilst in oversight. Thirdly give the oversight system proper investigatory and enforcment powers including punative abilities of unlimited fines and custodial sentancing (ie similar to malfeasance and purjury legislation). Forthly revisit the "emergancy powers" that the executive has, to stop abuses such as "rolling over" endlessly a state of emergancy, that is an emergancy must have hard time limits of say three months and then any extension has to be by mandatory voting by congress in public after proper debate.

There are no "NATO allies of the US" - there are vassal states, who provides soldiers for the wars of the feudal lord

Actually, it's quite the opposite. The US and I believe the UK are the only NATO members that meet or exceed the agreed target for defense spending as a percentage of GDP, meaning that all other countries are actually underrepresented in terms of equipment and manpower in NATO operations.

@Butthurt (aka C******e) - you are insane. Even Americans like me that are rather upset with NSA bulk collection have zero interest whatsoever in international law crap. ICCPR et al can take a flying leap. Frankly we can do WTF ever we want to non-Americans. And they can do WTF ever they want to us. It's our job to dissuade them and make their job more difficult, as it is their job to do to us. What we do to ourselves, on the other hand, is a very different story.

FBI - for targeted surveillance only (inside USA).
New Agency - for bulk surveillance only inside USA (agree with @@Zach, Anura) - directly under DCI.
Point is to separate bulk intelligence from law enforcement as system of checks and balances to prevent creation of Stasi-type monster.

I enjoyed your foamy and irrational reaction to the rule of law. It is shared by many fine American patriots. It is helpful to know that you believe international law is crap. You will agree then that Constitution Article VI is crap, and the Supreme Court is crap - after all, it was they who wrote the Paquete Habana decision. Also you think Congress is crap with their crap legislative intent unambiguously crapped out in the crap Congressional Record. Not to make your highbrow head pop like a zit, but the right to privacy is domestic law: supreme law of the land under Constitution Article VI, equivalent to federal statute and an integral part of federal and state common law in accordance with the Paquete Habana.

I must admit I was not aware that we can do WTF ever we want to non-Americans. This means that the War Crimes Act of 1996 is also crap, and the federal torture statutes. These legislative acts were required by international law. Now I understand the pride with which you cheer your troops on as they gang-rape little girls, cut slits in the penis of helpless captives, take trophy fingers, bomb hospitals, and double-tap funerals and weddings.

I also understand the desire to design the NSA institutionally so that it behaves in a desired fashion, i.e. targeted surveillance on foreign entities of foreign policy and national security interest.

I do have a few quick criticisms, which I mean to be constructive.

First, the Cyber Command thesis:

Putting the U.S. Cyber Command, the military's cyberwar wing, in the same location and under the same commander, expanded the NSA's power. The result is an agency that prioritizes intelligence gathering over security, and that's increasingly putting us all at risk. It's time we thought about breaking up the National Security Agency.

Cyber Command was not made part of the NSA until 2009; indeed the working concept of a Cyber Command didn't have much existence until 2006.

But the prioritization of "intelligence gathering over security", if that's a fair assessment and it occurred, came well before 2009. So the merge of the two wouldn't explain it.

Second, the network intrusion should be considered an offensive military operation thesis:

Whatever rules of engagement Cyber Command operates under should apply equally to active operations such as sabotaging the Natanz nuclear enrichment facility in Iran and hacking a Belgian telephone company. If we're going to attack the infrastructure of a foreign nation, let it be a clear military operation.

Well, the CIA engages in forms of espionage that are analogous to the hacking of a computer system to acquire intelligence. What's the value of making such activities part of the military? Is breaking into the SVR's network any more of an intrusion than paying someone in the SVR to access that network and exfil data from it?

I can see an argument from the institutional goals I think you have in mind: by placing these functions into the military, we further reduce the risk that they could be directed domestically. Still, I think the rationale needs some fleshing out.

Third, the wall between domestic and foreign surveillance thesis:

The FBI is charged with counterterrorism in the United States, and it needs to play that role. Any operations focused against U.S. citizens need to be subject to U.S. law, and the FBI is the best place to apply that law. That the NSA can, in the view of many, do an end-run around congressional oversight, legal due process and domestic laws is an affront to our Constitution and a danger to our society. The NSA's mission should be focused outside the United States -- for real, not just for show.

This isn't far at all from how things work right now, no? The only thing I see this changing is which agency runs searches in the telephone metadata database. And keep in mind that there are advantages to having the NSA do that, rather than the FBI. The FBI would have far more uses for an abuse of that database than does the NSA. The FBI is much more connected with ordinary law enforcement, and much more engaged and involved in domestic operations that involve surveillance and investigations of many persons and groups. There may also be, speculatively, more of an institutional bias at the NSA against stretching its use of the database. The FBI, institutionally, has conducted investigations and surveillance of various Americans throughout its history. But the NSA, not so much.

In other words, from the vantage of creating institutional obstacles to abuse, there's an advantage in not concentrating absolutely everything in the FBI.

That said, I do think we're dealing with very small differences. So long as the courts and the legislature continue to be informed of the use of the database in question, the odds of abuse are small. I also think that both institutions (the FBI and NSA) have very strong cultural norms against abuse, and I think those norms are strongly reinforced and supported by their own internal functions.

Right, gasp, cough, belly laugh, because 'as early as 1962 the NSA had systematically begun to include in a "watch list" the names of persons and organizations who were engaged in dissent against America's Vietnam policy. In 1967 this list and its focus increased sharply. On October 20 of that year General Yarborough sent a "TOP SECRET COMINT CHANNELS ONLY" message to NSA director Marshal Carter requesting that the NSA provide any available information about possible foreign communications to and influence on individuals associated with civil disturbances in the United States. [70]

'This request was apparently unprecedented. The army began to send over page after page of the names of protestors gathered by army intelligence units from all over the country whom they wanted surveilled. The CIA, the Secret Service, the FBI, and the DIA followed suit. The result was that this "watch list" grew enormously and went far beyond its original purpose. The NSA had a vacuum cleaner approach to intelligence gathering, sucking up all telecommunications of targeted individuals into the system. The use of a targeted person's or organization's name triggered the interception and recording of the conversation which was then subsequently analyzed. Thus, if an organization or a person was targeted, the communications of everyone in contact with them would be subject to this process,' http://www.american-buddha.com/martin.orderskill.30.htm

@C******e: Note that Article VI clearly states that the Constitution notwithstanding, treaties etc can have the force of law. If we enter a treaty that violates the Constitution, it's not the treaty that wins. The US is sovereign and its government may choose, occasionally, to sublet its defined powers to international organizations for diplomatic (eg face saving) reasons but such delegation is simply that, and simply temporary, not an dereliction of our sovereign rights. The Constitution does not bind Americans nor non-Americans. It binds the government of the united States of America. It does not bind any other nation's people or government.

That which we have voluntarily disavowed (eg torture, war crimes, etc) we have done so of our own accord. Not because so-called international law has any primacy.

That book was written by the lawyer who won King Family v. Jowers. Comes straight out of the trial transcript as forensically tested and adjudicated by a jury of your peers. Go read that. Be careful, because recently the very thought of such adverse facts made your head explode in sputtering denial.

Love your fallback position: "Well, maybe we did help CINCSTRIKE kill Martin Luther King, but that was a long time ago. Now we only help kill wogs or dissident US nationals or their minor children or grieving widows or flower girls and blushing brides at wedddings."

ou're talking out your ass and we can tell you had word salad for breakfast. You do not know what sovereignty is. Here is a clue. Sovereignty is responsibility.

Do you know what responsibility is?

Responsibility is, as a minimum, compliance with the UN Charter, the International Bill of Human Rights, and the universal-jurisdiction law codified for supranational adjudication in the Rome Statute. Your government acknowledges as much in the outside world, but they keep that stuff secret from the goobers back home. That's why you never heard of it.

Here, go tell the Tasaday elders how you can cook with fire and stuff,

The Rome Statute? Signed, but not ratified, by the USA? That same Rome Statute that Clinton at the time said created no jurisdiction over the USA? That same Rome Statute that would require a constitutional amendment to hold any sway in the USA?

Yep, universal jurisdiction. No statute of limitations. Federal common law and the common law of every state. Same law everywhere you go. Go ahead and run from the ICC. Any jurisdiction in the world can pick you up. You can run but you can't hide.

I'm quite happy for the US government to be scared. Scared of its citizens, scared of consequences of go-it-alone actions, scared of the risk China and Russia present, scared of the masterful politicking Putin is pulling to confuse both the left and the right over here.

But to be scared of 'international law' to which we are not subject? Nah.

The US government is too stupid to be scared of international law until somebody enforces it. That is why Putin pointed his swarm-targeted Sunburns at Obama's little bathtub rubber duckies. Stopped US aggression in Syria cold. Score one for Article 8 bis, jus cogens and customary international law.

Individual government criminals are terrified of international law. Look at Bush running wee-wee-wee all the way home from Switzerland. Look at fugitive Robert Lady and his torture gang running and hiding. Look at Ray Davis crying for Mommy Kerry to take him home. Look at the last half-dozen station chiefs in Pakistan running home.

The US government is not scared of their citizens because their subject population is too brainwashed to know what international law is for. US proles have no idea that it constrains states to protect humans. All the poor serfs know is USA USA USA, like the USA government is actually on their side.

When it comes to your rulers, there is no we. If you looked at the laws, you would see why your rulers don't like them. That's why they train you to think the laws are crap.

I just came across Stanley Milgram's 1974 article about his famous electric-shock experiments (The Perils of Obedience). This paragraph in particular stood out to me:

"This is, perhaps, the most fundamental lesson of our study: ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process. Moreover, even when the destructive effects of their work become patently clear, and they are asked to carry out actions incompatible with fundamental standards of morality, relatively few people have the resources needed to resist authority."

(emphasis mine)

I find it interesting to contemplate the actions of Edward Snowden in this light.

And also the actions of the thousands of people who participate in some way in the bulk spying programs of the NSA and similar agencies; technicians, programmers, managers, analysts, liasons and everyone else. Each doing their little part, each obeying authority, each (in their own small way) helping to destroy the freedoms that made their nations great. Each contributing, in some small way, to the future oppression of their countrymen.

There are two general theories about international law: one is that it is a general nonentity, entered into to smooth things over between states. In this theory international law has no effect on a state's sovereignty and no relationship to individuals.

In the other theory, international law is an extension of a state's own law-making sovereignty and binds it and all others it enters into treaty relationships with. In this theory, the law concerns the individual, because the state is founded on the rights of the individual, not the sovereignty of the state.

Since there is a vast collection of international private law, such as the two-thousand-year-old salvage law, that directly concern individuals, we may conclude that the first theory of international law - that it only concerns states and their relationships - derives from the same source as the discredited Divine Right of Kings, an innovation of states that lose connection to their citizens.

(for what it's worth, the US Constitution was written by people who considered that since the state was founded on the private individual, and not the private individual on the state, the second law was the correct theory, and that therefore international law was the concern of every individual citizen. That accounts for the wording in the US Constitution - which incidentally they considered to be a distillation of standard British thinking concerning treaties and international law.)

A state cannot argue that international law has no effect on it after spending the past few decades arguing that international human rights law overrode national sovereignty - which the US did during the latter part of the Cold War. There's a legal doctrine that someone cannot commit to upholding a specific law, without accepting that it binds him: if at any point in time, any US politician declares that international criminal law is binding on other states and threatens its use against them (You do remember the Libyan intervention?), then the consensus is that said politician (and the US state) has also accepted that it also binds them.

@Wesley Parish: "A state cannot argue that international law has no effect on it after spending the past few decades arguing that international human rights law overrode national sovereignty - which the US did during the latter part of the Cold War." Very good and reasonable point. Law (and international public Law in particular) has such feature as uniformity, i.e. applies similar regardless of other considerations. When double standard or cherry picking is promoted, that is bad example for other participants, and respect to the Law-guided relationships plummeted. Not a path to tranquility.

@C***: So in your view, CIA station chiefs in Pakistan are moved home because of fear of international law (not that they might be targets of various ITOs), and Putin safeguarded the rights of Syria by threatening the US with force resulting in a victory for international law. Okay.

@Wesley: I suspect BJP's dismissive attitude towards int'l law is based on the horizontal nature of int'l law and the essentially anarchic nature of the international system. Int'l law is mostly a collection of conventions, and some customary law, created by states of varying degrees of legitimacy and democracy. It has no moral significance in itself, and it is effective only insofar as it is coincident with the power and decisions of states wishing to enforce, or abide by, a particular convention or custom.

Pragmatically, it's useful to some extent, and it can be useful as a means for states to coordinate actions (e.g. treatment of captured soldiers). But, it's just as frequently vague, ill-fitted to present circumstances, wholly dysfunctional, and impotent. The military and economic power of the US and allies have done far more to prevent regions from dissolving into total war than any article of int'l law ever has or, or the foreseeable future, will.

So my view on it is pragmatic. It's useful for many things (establishing protocols in international flight and transport, for example), and ill suited for other things.

When it comes to conflicts with international terrorist organizations, which are capable of causing massive damage to the West if left unattended, and which are capable of causing regional unrest in their local regions, international law does not provide a settled framework that adequately defines the parameters of legal conflict while allowing nations to take reasonable steps to protect themselves and, when asked, others.

I think int'l law is moving in that direction, and that eventually international law will reflect international reality: states may use military force against non-state actors in ungoverned areas of third states, if such non-state actors are clearly intent on harming the defending state, if the third state is unable or unwilling to neutralize the threat, if further delay would result in increased difficulty in neutralizing the threat, and if military force can be used in a manner that conforms to LOAC for IAC.

But that will be another example of international law shaping itself, eventually, to the needs and interests of states and power.

@Skeptical - I often (OK, nearly always) find myself disagreeing with what you write here. But you have done a good job encapsulating my position. Cheers.

@Wesley - See Skeptical's response. I would argue that the latter theory may have fit the USA pre-Reconstruction, but that the former theory holds at present as the government has since changed its relationship to the citizenry from one based on individual sovereignty to one based on state sovereignty. I don't like it but that's how it appears, and the nullity of international law follows logically from this.

Back on topic: breaking up NSA would accomplish nothing. It is on every individual to put in the effort required to keep NSA (and GCHQ, and the FSB, and every other intelligence agency, copyright protection racket, politically correct harpy etc) out of their business. So long as you leak info in cleartext it will be read by people you don't want to read it, no matter how much you stamp your feet and cry that it isn't fair. So long as you use services which leak info in cleartext the same will occur, no matter how much you protest your commoditization.

I see you are again "cherry picking" your arguments to avoid having to admit your viewpoint does not fit the known facts.

So you say,

So in your view, CIA station chiefs in Pakistan are moved home because of fear of international law (not that they might be targets of various ITOs), and Putin safeguarded the rights of Syria by threatening the US with force resulting in a victory for international law. Okay

Thus deliberatly avoiding such things as,

Look at Bush running wee-wee-wee all the way home from Switzerland.

Where it has been shown that moves were afoot to have him arested under international law, but he was tipped of by the USG to in effect become an international fugative on the run.

You realise that in effect the US has now anounced that it aligns it's self with all those other nations it has accused of harbouring "war criminals". Now I know that such harbouring is not new after all back in the Ronnie "raygun" era the UK's "Mad Maggie" Thatcher did her best to stop Pinochet being tried as a war criminal and it's known the US has a significant influance on this via the so called "special relationship" in order to spare them what would no doubt come out in court. Oh and the Special Relationship also gave Ronnie a title (KCGB) that under US law he should not have accepted, likewise George H Bush.

How many other examples would you like to show the US double standards on not just International law but it's own national laws?

Then there is your statment,

When it comes to conflicts with international terrorist organizations, which are capable of causing massive damage to the West if left unattended, and which are capable of causing regional unrest in their local regions

This argument is right out of the US "Bumper Book of FUD" as espoused by the politicos sucking on the teat of the Military Industrial Complex who authored not just the scripts but large sections of legislation the same addeled politicos voted in without even bothering to read let alone debate...

In Europe untill recently the way to deal with terrorism was to basicaly not pander to it, all through the last fourty years of the last century Europe was the terrorist play ground as the US and CCCP played "proxie war" by backing various terrorist organisations. Then as both super powers have discovered "chickens come home to roost" and all of a sudden it's in your own backyard for once, so what dose the US do? It behaves like "Chicken little" and ends up destroying it's own economy, rather than dealing with the problem rationaly as Europe had done for fourty years.

So when continental Europe basicaly said quite wisely of your War On Terror "We don't want to be involved with your increadably stupid idea" you accused them of amongst other things of being "cheese eating surender monkeys". Which is the sort of childish behaviour you would expect of six year olds in the school playground.

But I guess such childish behaviour is still rife, after all by your own admission when it comes to being told the playground has rules you squawk "It's my bat and ball and I'n going home" in yet another fit of childish peek.

International law is like any other system of law - it's useless unless it is enforced. And it does have a moral dimension - any system of law is in part built on expectations of even-handed justice. Law that is built solely around power tends to fall with the people who hold - and abuse - that power.

Back On Topic:

The current problem with the US in general and the NSA in particular has been something that an SF writer, Cordwainer Smith, wrote about under his birth-certificate alias Dr Paul Myron Linebarger:

Psychological Warfare: The Limitations of Psychological Warfare, p49:
"German broadcasters who emphasized the anti-capitalist character of National Socialism in the programs beamed to Eastern Europe found that B.B.C. picked up the most tactless statements and repeated them to Western Europe, where the Germans posed as anti-Bolshevik champions of private property. American attacks on the Germans for associating with Japanese monkey-men were passed along by the Japanese to the Chinese, who did not like the slur either."

The US govt has notoriously spent millions of dollars over the last sixty years arguing that only tyrannies spy on their own citizens. It has set up moral expectations that democracies don't spy on their own citizens. Now it has been found out as the one state best equipped to spy on its own citizens, and one of the states most actively using that its own citizens.

The phrase "hoist on one's own petard" springs to mind.

In this situation, the only way to regain the trust it had solicited with its propaganda, is to send the razor gang after the black budget and the surveillance state, and put its money where its mouth is.

@Clive: I see you are again "cherry picking" your arguments to avoid having to admit your viewpoint does not fit the known facts.

Hey, that's not fair. I'm not trying to cherry-pick anything. If you think I missed something important, that's okay. In fact, it's good, because maybe I've missed something that will change my mind or deepen my thinking. But accusing me of cherry-picking isn't a particularly congenial assumption to make in the course of a conversation.

Thus deliberatly avoiding such things as,

Look at Bush running wee-wee-wee all the way home from Switzerland.

Where it has been shown that moves were afoot to have him arested under international law, but he was tipped of by the USG to in effect become an international fugative on the run.

This example was introduced to support the proposition that American officials are "terrified" of int'l law.

It is entirely fanciful.

Fact: Bush did cancel a trip to Switzerland in 2011 (he was scheduled to give a speech there).

Fact: Various NGOs did plan to file a complaint with a Swiss prosecutor (something they had done before).

Fact: A large protest demonstration at the speech was planned.

Fact: Because of the demonstration planned, the group to which Bush was to give the speech grew concerned about the potential for disorder and violence, and cancelled the speech.

Now, various NGOs, per their usual aggressive PR, reported this as Bush cancelling the trip out of fear of prosecution.

This is false because:
1 - An NGO had previously filed a complaint with Swiss authorities in 2003, which the Swiss explicitly declined to pursue. The reasons they gave would attach to any complaints filed again, as the NGOs know, and as Bush knows (otherwise he would have hardly scheduled a trip in 2011 to Switzerland).
2 - The Swiss authorities themselves in 2011, in response to letters from Amnesty International alleging war crimes committed by Bush, told Amnesty International that they would not prosecute.

Amnesty International sent Swiss authorities documents detailing their case for prosecuting Mr. Bush for torture, based on his admissions and other evidence concerning the waterboarding of two members of Al Qaeda, Khalid Shaikh Mohammed and Abu Zubaydah.

Swiss officials told human rights groups recently that they had no plans to try to prosecute Mr. Bush, Ms. Brown said. But the prospect of large demonstrations at the site of Mr. Bush’s speech remained, and the event’s organizers feared that protests could turn violent. Protest organizers were said to have asked demonstrators to carry shoes to the event, recalling how an Iraqi journalist threw a shoe at Mr. Bush in 2008 to protest his visit to Baghdad.

While there have been various efforts by NGOs to use universal jurisdiction laws to attempt a prosecution of Bush and other officials, these have not been successful, and none is a fugitive from any country.

So the idea that American officials are "terrified" of int'l law is, again, ridiculous.

As to the rest of your comment:

You realise that in effect the US has now anounced that it aligns it's self with all those other nations it has accused of harbouring "war criminals".

Could you expand on this? I'm not sure what you mean by "aligns" nor am I certain of the nations you're referring to.

How many other examples would you like to show the US double standards on not just International law but it's own national laws?

Your evidence here is that Thatcher was opposed to Pinochet's extradition from Britain to Spain, and that Reagan and Bush accepted some title from Britain without Congressional consent. I haven't looked into the latter, but I highly doubt it was in circumvention of the law. As to US conduct internationally, without a doubt it has supported some very bad regimes.

In Europe untill recently the way to deal with terrorism was to basicaly not pander to it, all through the last fourty years of the last century Europe was the terrorist play ground as the US and CCCP played "proxie war" by backing various terrorist organisations. Then as both super powers have discovered "chickens come home to roost" and all of a sudden it's in your own backyard for once, so what dose the US do? It behaves like "Chicken little" and ends up destroying it's own economy, rather than dealing with the problem rationaly as Europe had done for fourty years.

:) There's a bit of a "wise Europe and uncouth violent America" in your paragraph here, though maybe I'm misreading. I've always found that to be one of the more amusing silly caricatures of Europe and the US.

Let's look at some numbers.

The total number of terrorist deaths in Europe, including the conflict with the IRA and Basque separatists, from 1950 to 1995, over 45 years, is 2,777. See the TWEED dataset, available here

The loss from 9/11 is 2,996, a number exceeding all the terrorist fatalities in Europe over 45 years, and all incurred on a single morning, with the prospect of more to come. So let's not pretend that the problem presented during those 45 years and the problem made undeniable on 9/11 are of the same order of magnitude. They're not.

So when continental Europe basicaly said quite wisely of your War On Terror "We don't want to be involved with your increadably stupid idea" you accused them of amongst other things of being "cheese eating surender monkeys". Which is the sort of childish behaviour you would expect of six year olds in the school playground.

Actually NATO declared that the attack on 9/11 triggered Article V, and there has in fact been enormous assistance from close military allies to the US in the war upon AQ and affiliated organizations. Europe quite wisely recognized that the magnitude of the problem had changed, and joined forces with the US against it.

As to "cheese eating surrender monkeys", you're confusing allied cooperation on the so called global war on terrorism, which has been quite strong and continuing, and allied disagreement on Iraq, which was at times quite heated (and produced silly remarks, such as that you quoted, from idiots of every nationality).

You have to be kidding me--I was in Europe in 2003/4 as the U.S. executed a "failure of leadership" of war in the name of terrorism. And from there it was obvious that the ginning up of war--between Powell, the false claim of 45 minutes, and that AQ had a relationship with a ardent secterian Sadaam, was ridiculus. Also, the need to execute the war was pushed by planners given specific strategic requirements. For example, fear of chemical weapons and the heat of the Iraqi spring/summer was thought to be untenible. The stupidity of the american intelligensia, the war planners, and the revenge-based planning around the Iraq war was wholly visible. And, I do agree with Clive in a general way. Your contributions here seem to have an apologists/deniers flavor to it--over and over you have managed to managle a response that justifies the state's action...and I will continue to argue that the actions taken were criminal in nature. To quote "Tenet", "It's a slam dunk!"

If you're going to measure the loss of life you must include the number of service people, innocents, and civilians (excluding combatants is considered reasonable). That said, try the loss of 100,000's of people...and Europe's numbers start to come into scope with the number of lives affected by U.S. political hegomeny. Ignorance, and specifically stupidity, is no excuse.